1

Climate Change Reparations and the Law and Practice of State Responsibility

It was argued elsewhere that industrial states were legally responsible for interfering with the climate

system by failing to prevent excessive greenhouse gas emissions. This article determines the international

legal principles relevant to the remedial obligations of industrial states. It assumes that climate change

reparations should aim first at providing a signal for the cessation of the wrongful act (i.e. incentivizing

climate change mitigation) rather than addressing the injury. A review of state practice in different fields

suggests the existence of relevant exceptions to the principle of full reparation. These exceptions relate to

the financial capacity of responsible states, the indirect nature of the injury, considerations of “culpability,”

and the limitations of collective responsibility as “rough” justice. Accordingly, it is suggested that climate

change reparations should be limited to partial compensation and symbolic measures of satisfaction prone

to incentivize climate change mitigation.

Climate change is possibly the greatest harm ever caused by human beings to other human

beings – possibly threatening our very existence as a civilization and as a species.1 In recent

years, international negotiations, advocacy and academic research have taken a renewed

interest in the relevance of the concept of responsibility in this context, specifically in the

relation between industrial states and the developing states most vulnerable to climate change.2

In particular, discussions on possible “means to address loss and damage associated with

climate change impacts in developing countries that are particularly vulnerable to the adverse

effects of climate change” were initiated by the 2007 “Bali Action Plan”3; the Warsaw

International Mechanism for Loss and Damage was established in 2014.4 As the quest of a

comprehensive climate change agreement (where all states would commit to specific

commitments) gives a stronger bargaining power to developing states, the demand of the

populations most affected by climate change but least responsible for causing it can no longer

remain unheard.

International law scholarship has certainly a role to play in this debate. Because international

law is essentially a “promise of justice,”5 the moral dimensions of climate change cannot be

ignored – in particular as those nations and individuals who benefit the least from

industrialisation and development are often the most affected by the adverse impacts of climate

change.6 Beyond the scope of positive rules, there exist general principles underpinning

international law, such as the principle of responsibility and some principles governing

remedial obligations, from which legitimate expectations arise as to the outcomes of political

negotiations, and which therefore should not arbitrarily be disregarded when responses to new

issues such as climate change are being imagined. Only if it appears broadly just to most

peoples around the globe can a global climate agreement successfully trigger the costly

1 See generally Intergovernmental Panel on Climate Change [“IPCC”], Climate Change 2013: The Physical

Science Basis, Working Group I Contribution to the Fifth Assessment Report of the Intergovernmental Panel on

Climate Change (Cambridge: Cambridge University Press, 2014). 2 See Benoit Mayer, “Conceiving the Rationale for International Climate Law” (forthcoming) Climatic Change. 3 Decision 1/CP.13 [Thirteen decision of the first conference of the parties to the UN Framework Convention on

Climate Change], “Bali Action Plan” (2007), para. (1)(c)(iii). 4 Decision 2/CP.19, “Warsaw international mechanism for loss and damage associated with climate change

impacts” (2014), para. 1 [“Warsaw international mechanism”]. 5 Martti Koskenniemi, “What Is International Law for?” in Malcolm D. Evans, ed., International Law (Oxford:

Oxford University Press, 2010), 32 at 32. 6 See generally International Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and

Vulnerability: Volume 1, Global and Sectoral Aspects, Working Group II Contribution to the IPCC Fifth

Assessment Report (Cambridge: Cambridge University Press, 2014).

2

measures necessary to mitigate climate change,7 and international law, despite all its flaws and

biases, is certainly the most consensual expression of broadly accepted moral principles.

Besides, the failure of states to agree on climate change responses acquaint with general

principles of international law would significantly impede the promotion of the rule of law in

international relations and trust in international institutions, as it would demonstrate that some

(powerful) states can get away with knowingly causing the greatest harm to global commons.

As the adverse impacts of climate change are becoming more discernible and far-reaching, a

constant haggling of national mitigation commitments would increasingly become an

embarrassment for international law – showing just too clearly the incapacity of international

law to fulfil its promise of justice when the interest of powerful industrial nations are at stakes.

An argument has been made elsewhere8 according to which industrial states (in particular)9

are responsible, under international law, for their failure to prevent excessive greenhouse gas

(GHG) emissions within their jurisdiction. This argument can be based on a breach of the “no

harm” principle, from which arises an obligation for states to prevent activities within their

jurisdiction that cause cross-boundary environmental damage.10 The injury caused by this

internationally wrongful act is most persuasively conceived of as an injury to the global

atmospheric commons – or, in the terms of the UN Framework Convention on Climate Change,

as a “dangerous anthropogenic interference with the climate system.”11 The International Law

Commission recognized that breaches to obligations owned to the international community as

7 This is one of the main conclusions of a workshop convened by the secretariat of the UN Framework Convention

on Climate Change (UNFCCC) in 2010. See UNFCCC, “Report on the Workshop on Equitable Access to

Sustainable Development,” FCCC/AWGLCA/2012/INF.3/Rev.1 (2012), para.71. 8 Benoit Mayer, “State Responsibility and Climate Change Governance: A Light through the Storm” (2014) 13:3

Chinese JIL 539. See also Christina Voigt, “State Responsibility for Climate Change Damages” (2008) 77:1

Nordic JIL 1; Roda Verheyen and Peter Roderick, “Beyond Adaptation: The Legal Duty to Pay Compensation

for Climate Change Damage” (2008, WWF UK). 9 Emerging economies such as China or Brazil account for steadily increasing GHG emissions, although per capita

emissions in these countries remain currently several times inferior to the per capita emissions of the United States,

Australia, Canada or the European Union. The gap is wider when stocks of historical per capita emissions are

considered. Data on greenhouse gas emissions per country can be accessed for instance from the World Resources

Institute’s Climate Data Explorer, available at http://cait2.wri.org 10 See in particular Trail Smelter (United States v. Canada), Decision of 11 March 1941, III Reports of

International Arbitral Awards 1907 at 1965; Declaration of the United Nations Conference on the Human

Environment, UN Doc A/Conf.48/14/Rev.1 (1972), principle 21 [“Stockholm Declaration”]; Rio Declaration on

Environment and Development, UN Doc A/CONF.151/26 (vol. I) (1992), principle 2 [“Rio Declaration”]; The

Legality of the Threat or Use of Nuclear Weapons, advisory opinion, [1996] I.C.J. Rep. 226 at para. 29; Iron Rhine

arbitration (Belgium v. Netherlands), Decision of 24 May 2005, XXVII Reports of International Arbitral Awards

35, at para. 222; Pulp Mills on the river Uruguay (Argentina v. Uruguay), [2010] I.C.J. Rep. 14 at para. 101;

Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (Cambridge: Cambridge

University Press, 2012) at 196. Alternative arguments could invoke the failure of a state to comply with its

obligations under diverse relevant treaties, including not only the UN Framework Convention on Climate Change

(14 June 1992, 1771 U.N.T.S. 107, entered into force 21 March 1994 [“UNFCCC”]) and the Kyoto Protocol to

the UNFCCC (11 December 1997, 2303 U.N.T.S.148, entered into force 16 February 2005 [“Kyoto Protocol”]),

but also, among others: the Montreal Protocol on Substances that Deplete the Ozone Layer (16 September 1987,

1522 U.N.T.S.3, entered into force 1 January 1989); the Convention on Long-Range Trans-boundary Air Pollution

(13 November 1979, 1302 U.N.T.S.217, entered into force 16 March 1983) and its eight protocols; the ASEAN

Agreement on Trans-boundary Haze Pollution (10 June 2002, entered into force 25 November 2003); and the UN

Convention on the Law of the Sea (10 December 1982, 1833 U.N.T.S.3, entered into force 16 November 1994),

part XII. 11 UNFCCC, supra note 10 art. 2. See also the second recital of the UNFCCC, “[a]cknowledging that change in

the Earth's climate and its adverse effects are a common concern of humankind.”

3

a whole could also give rise to an obligation to pay reparations.12 Although there is no clear

precedent on this, it seems possible to assume, in line with the state-centred nature of

international law, that compensation should accordingly be paid to the states representing the

populations most affected by the injury caused to the global commons.13

However, one cannot ignore the formidable institutional and political obstacles to the

implementation of this legal argument.14 A jurisdictional finding of the responsibility of

industrial states is unlikely because of the consensual nature of international adjudication,15 the

geopolitical settings whereby the states most affected by climate change are also those with the

least diplomatic power,16 and the fragmentation of responsibility between multiple industrial

states.17 Even if the responsibility of industrial states, or of some of them, was asserted in a

contentious case or (more likely) through an advisory opinion, absent diplomatic power and

effective counter-measures on the side of those most affected by climate change, compliance

would entirely depend on the goodwill of political leaders within industrial states.

More fundamentally, political hurdles impede our admission of the responsibility of

industrial states for climate change. While climate scepticism is over-represented in the

media,18 the very abstract concept of an alteration of the probability of particular weather

patterns (rather than the occurrence of a particular weather event) is not easily communicable

in the sort of simple political discourses through which liberal democracies make collective

12 Draft Articles on the Responsibility of States for internationally wrongful acts, UNGA Res. 56/8 (2001) [“Draft

Articles on State Responsibility”], art. 42(2) and commentary under art. 42, para. 12 (“In case of breaches of

obligations under article 48, it may well be that there is no State which is individually injured by the breach, yet

it is highly desirable that some State or States be in a position to claim reparation, in particular restitution.”) In

the context of climate change, restitution would be materially impossible as it would involve, at least, to remove

phenomenal quantities of GHG from the atmosphere. 13 See Mayer, supra note 8, paras. 42-43; Benoit Mayer, “Whose ‘Loss and Damage’? Promoting the Agency of

Beneficiary States” (2014) 4:3-4 Climate Law 267. 14 See Mayer, supra note 8, paras. 27-31 and 52-63. 15 See e.g. Statute of the International Court of Justice, 26 June 1945, [1946] UKTS 67 (entered into force 24

October 1945), art. 36. 16 Political pressure has already been applied on developing states against legitimate calls for responsibility. For

instance, Palau (a small island developing state with a population of about 20.000), which initiated a campaign

for the UN General Assembly to request an advisory opinion from the ICJ, had to back out when the United States

threatened to interrupt the provision of development aid. See e.g. Stuart Beck and Elizabeth Burleson, “Inside the

System, Outside the Box: Palau’s Pursuit of Climate Justice and Security at the United Nations” (2014) 3

Transnational Environmental Law 17 at 26. Likewise, Tuvalu, another small island developing state (population

10.000) highly dependent on international aid, has not carried out its repeated threats to seek the responsibility of

Australia or the United States before an international jurisdiction. 17 A decision on an apportionment of responsibility, in a contentious case, could be precluded by the Monetary

Gold principle, in application of which the ICJ has refused to determine the responsibility of a state if, in order to

do so, “it would have to rule, as a prerequisite, on the lawfulness” of the conduct of a third state. East Timor

(Portugal v. Australia), [1995] I.C.J. Rep. 90 at para.35; Monetary Gold Removed from Rome in 1943 (Italy v.

France), [1954] I.C.J. Rep. 19 at 32. See also, however, Certain Phosphate Lands in Nauru (Nauru v. Australia),

Judgment of 26 June 1992 on preliminary objections, [1992] I.C.C. Rep. 240 at 259-260. 18 See Maxwell Boykoff and Jules Boykoff, “Climate Change and Journalistic Norms: A Case-Study of US Mass-

Media Coverage” (2007) 38 Geoforum 1190 at 1190, observing the media’s frequent “adherence to first-order

journalistic norms – personalization, dramatization and novelty.” See also, generally, Maxwell Boykoff and Jules

Boykoff, “Balance as Bias: Global Warming and the US Prestige Press” (2004) 14 Global Environmental Change

133.

4

decisions. Because it “lacks a sense of urgency,”19 climate change, as “creeping normalcy,”20

has not triggered wide mobilization in support of immediate action.

This article questions the nature of climate change reparations based on customary

international law. It contends that climate change reparations need to be designed with a

particular sensitivity to the unprecedented nature of climate change, but that it should also take

stock of relevant analogies with state practice in different fields. Accordingly, it opposes a strict

application of certain provisions of the law of state responsibility as codified by the

International Law Commission. Whereas article 31(1) of the Draft Articles on State

Responsibility assesses that a “responsible State is under an obligation to make full reparation

for the injury caused by the international wrongful act,”21 this article argues that climate change

reparations need not (and, arguably, cannot) be “full” reparations.

Thus, the argument of this article is two-faceted. On the one hand, it develops new

reflections on climate change reparations which, hopefully, will resonate with ongoing debates

on “loss and damage” associated with climate change impacts in developing countries and with

other discussions within the climate regime, as part of a wider project of highlighting the long-

overseen relevance of international law to the governance of climate change. On the other hand,

based on the example of climate change reparations, it suggests a reflection on the nature of

remedial obligations, involving a criticism of the general character of article 31(1) of the Draft

Articles on State Responsibility, by showing that states have sometimes consensually rejected

full reparation on the basis of certain equitable considerations.

The concept of “climate change reparations” used in this article hints at an analogy with war

reparations, a field where, ever since the devastating experience of the Versailles treaty,22 it

appeared that full reparation could be politically toxic. Beyond war reparations or mass

atrocities more generally, states have also agreed to less-than-full reparations in the settlement

of trade disputes or in relation to the takings of foreign properties, as well as when loss and

damage arise from hazardous activities. The relevance of these different fields cannot be

dismissed simply on the ground that they would constitute a lex specialis derogating to the

general law of state responsibility: the general practice of states in these fields reflects the

consistent recognition of certain transversal justifications for a diminution of reparation.

Consistently, in the context of climate change, a diminution of industrial states’ remedial

obligations could be justified on the basis of the limited financial capacity of the responsible

states, the indirect nature of the injury, the significant disproportion between the injury and the

wrongfulness of the act, and the limitation of collective responsibility as a form of “rough”

justice in cases of large injuries. More pragmatically, a prompt admission of responsibility

accompanied with a limited payment of reparations would create some political impetus and

facilitate efforts to cease excessive wrongful acts, hopefully before current, growing GHG

emissions trigger an irremediable and cataclysmic change in our climate.

19 Anthony Leiserowitz, “Climate Change Risk Perception and Policy Preferences: The Role of Affect, Imagery,

and Values” (2006) 77 Climatic Change 45 at 64. See also Elke Weber, “Experience-Based and Description-

Based Perceptions of Long-Term Risk: Why Global Warming Does Not Scare Us (Yet)” (2006) 77 Climatic

Change 103; Harry Collins and Robert Evans, Rethinking Expertise (Chicago: University of Chicago Press, 2007)

at 2 (discussing “science’s … short-term political impotence”). 20 Jared Diamond, Collapse: How Societies Choose to Fail or Succeed (New York: Penguin, 2011) at 425. 21 Draft Articles on State Responsibility, supra note 12, art. 31(1). 22 Versailles treaty (28 June 1919, [1919] UKTS 4 (Cmd 153), entered into force 20 January 1920) art. 232.

5

The remainder article is structured as follows. Section II provides a general overview of

current debates on climate change reparations, as the political context is useful in conceiving

the rationale for, hence the nature of climate change reparations. Section III retraces the timid

recognition of less-than-full reparation across different fields of international law, with regard

to war reparations, trade disputes, expropriations, and hazardous activities. Section IV

identifies systematically four justifications for a diminution of climate change reparations by

analogy with the general practice of states in these different fields. Section V ponders the

implications of less-than-full climate change reparations for climate change governance as well

as international law in general. Section VI concludes.

I. SITUATING CLIMATE CHANGE REPARATIONS

In order to situate climate change reparations in the context of climate change negotiations, this

section introduces general reflections on climate change and responsibility (A), recounts the

recent breakthrough of the concept of “loss and damage” (B), before defining the rationale for

climate change reparations (C).

A. Climate Change and Responsibility

The idea of a responsibility of climate change is certainly not new. Its conceptual roots can be

drawn to the Roman maxim “sic utere tuo ut alienum non laedas” (“Use your own property in

such a way that you do not injure other people’s”), to which domestic provisions on nuisance

(in common law) or neighbourhood disturbances (in civil law) relate closely. The Trail Smelter

arbitral award stated that, “under the principle of international law … no State has the right to

use or permit the use of its territory in such a manner as to cause injury by fumes in or to the

territory of another or the properties or persons therein, when the case is of serious consequence

and the injury is established by clear and convincing evidence.”23 The 1972 “Stockholm”

Declaration of the United Nations Conference on the Human Environment, the 1992 “Rio”

Declaration on Environment and Development, as well as number of other international

instruments, jurisdictional decisions and teachings of the most highly qualified publicists have

confirmed that states have an obligation to ensure that activities within their jurisdiction do not

cause damage beyond this jurisdiction (no-harm principle).24

Adopted at the “Earth summit” in Rio de Janeiro in June 1992, the UN Framework

Convention on Climate Change recalled the no-harm principle,25 noting also that “the largest

share of historical and current global GHG emissions has originated in developed countries.”26

However, this preambular reference to the no-harm principle was obscured by the recognition

of a new and somewhat mysterious principle of “common but differentiated responsibilities,”27

in application of which “the developed country Parties should take the lead in combating

climate change and the adverse effects thereof.”28 The nature of the principle of common but

differentiated responsibilities remained unclear: while it may seem to hint at the causal

responsibility (as an application of the no-harm principle), developed states have argued that it

only “highlights the special leadership role of developed countries, based on [their] industrial

development, [their] experience with environmental protection policies and actions, and [their]

23 Trail Smelter, supra note 10. 24 See generally the sources cited supra note 10. 25 UNFCCC, supra note 10, 9th recital. 26 Ibid., 4th recital. 27 Ibid., 7th recital, art. 3(1) and art. 4(1). 28 Ibid., art. 3(1).

6

wealth, technical expertise and capabilities.”29 As a reflection of the limits of this constructive

ambiguity, the UNFCCC only contained very limited provisions on North-South finance.30

Over the last two decades, climate finance has invariably concentrated on climate change

mitigation (i.e. the limitation and reduction of GHG emissions and the enhancement of GHG

sinks and reservoirs) rather than adaptation (i.e. adjustments in response the effects or impacts

of climate change).31 Most of the burden of adapting to the adverse impacts of climate change

has remained on the states directly affected, in particular developing ones that had only

marginally benefited from industrialization.32

Overall, words such as “reparation” and “compensation” have remained political non-

starters for the representatives of industrial nations,33 which have engaged in a systematic effort

at derailing any principled discussion of the ethical or legal dimensions of climate change.

Developed states have thus rejected any discussion on the principles that should guide climate

governance, from the early negotiations of the UNFCCC,34 to the proposal of India to initiate

a dialogue on equity in 2011.35 The same year, the United States used the leverage of its

international aid to development and blocked the campaign of Palau, at the UN General

Assembly, to request an advisory opinion of the International Court of Justice on the legal

aspects of climate change.36

Likewise, from 2011 to 2013, developed states representatives at the Sixth Committee of

the UN General Assembly fiercely opposed the inclusion of a topic on the “protection of the

atmosphere” within the long-term work programme of the International Law Commission,37

on the (surprising) ground that the existing political process of negotiations were “relatively

effective,”38 had “provided sufficient general guidance to States,”39 and “was already well-

served by established legal arrangements.”40 The ILC could only initiate the study of the topic

after a costly political compromise that excluded virtually any possible substance from its

consideration: it was not only prevented from interfering with negotiations on climate change,

29 Written statement of the United States on principle 2 of the Rio Declaration, in UN Conference on

Environment and Development, UN Doc. A/CONF.151/26 vol. II (1992) at 17-18. 30 UNFCCC, supra note 10, art. 4(4): “The developed country Parties and other developed Parties included in

annex II shall also assist the developing country Parties that are particularly vulnerable to the adverse effects of

climate change in meeting costs of adaptation to those adverse effects.” This language is different from “meeting

the costs of adaptation.” 31 See in particular Barbara Buchner et al., Global Landscape of Climate Finance 2014 (San Francisco: Climate

Policy Initiative, 2014); UNFCCC Standing Committee on Finance, 2014 Biennial Assessment and Overview of

Climate Finance Flows (Bonn: UNFCCC, 2014). 32 See generally UNEP, The Adaptation Gap Report 2014: A Preliminary Assessment Report (Nairobi: UNEP,

2014). 33 See e.g. Koko Warner and Sumaya Ahmed Zakieldeen, Loss and Damage Due to Climate Change: An Overview

of the UNFCCC Negotiations (Oxford: European Capacity Building Initiative, 2012) at 3. 34 See e.g. Daniel Bodansky, “The United Nations Framework Convention on Climate Change: A Commentary”

(1993) 18 Yale Journal of International Law 451 at 501. 35 See UNFCCC, Report of the Conference of the Parties on its seventeenth session, held in Durban from 28

November to 11 December 2011, Part One: Proceedings, FCCC/CP/2011/9, paras.13-18. 36 Beck and Burleson, supra note 16 at 26. 37 International Law Commission, Report of the Sixty-third session (2011), para.365 and Annex II, Protection of

the atmosphere, by Mr. Shinya Murase. 38 Statement of Mr. Simonoff (United States), in the Summary Records of the 20th meeting of the Sixth Committee

of the UN General Assembly in its 66th session, UN Doc. A/C.6/66/SR.20 (2011) at para. 15. 39 Statement of Mr. Buchwald (United States), in the Summary Records of the 19th meeting of the Sixth Committee

of the UN General Assembly in its 67th session, UN Doc. A/C.6/67/SR.19 (2012) at para. 118. 40 Statement of Mr. Macleod (United Kingdom), in the Summary Records of the 18th meeting of the Sixth

Committee of the UN General Assembly in its 68th session, UN Doc. A/C.6/68/SR.18 (2013) at para. 21.

7

but also from dealing with the “liability of States and their nationals, the polluter-pays

principle, the precautionary principle, common but differentiated responsibilities, and the

transfer of funds and technology to developing countries, including intellectual property

rights.”41 By evading any substantive discussion within the ILC, developed states ensured that

climate change governance would follow a political logic where power dominates, rather than

the guidance of general principles of law and justice.

B. The Recent Breakthrough of the Concept of Loss and Damage

Despite the hostility of developed states to any discussion of the ethical or legal aspects of

climate change, arguments for climate change responsibility have repeatedly been made by the

representatives of the most vulnerable states. In 1991, the Alliance of Small Island States

proposed to the Intergovernmental Negotiating Committee for a Framework Convention on

Climate Change, the establishment of an international insurance mechanism whose revenues

would be drawn “from mandatory sources” in developed states, and which would be used “to

compensate the most vulnerable small island and low-lying coastal developing countries.”42

While this submission was limited to “loss and damage resulting from sea level rise,”43 it

recognized that similar mechanisms could eventually be established to cover other adverse

impacts that could be attributed to climate change.44 The proposal was given little consideration

at the time because, as an observer noted, the most vulnerable states “had [little] to offer the

developed world in exchange for financial transfers.”45

The concept of loss and damage came back to the fore in recent years, as developed states

were increasingly ready to make some concessions in exchange of mitigation commitments on

the part of emerging economies.46 In 2007, as part of an “enhanced action on adaptation,” the

Bali Action Plan invited consideration of “means to address loss and damage associated with

climate change impacts in developing countries that are particularly vulnerable to the adverse

effects of climate change.”47 The discussions initially took place within the AWG-LCA,48

41 Shinya Murase, First report on the protection of the atmosphere, UN Doc. A/CN.4/667 (2014) at para.5. This

compromise also provides that “[t]he outcome of the work on the topic will be draft guidelines that do not seek to

impose on current treaty regimes legal rules or legal principles not already contained therein.” Mr. Sinhaseni

(Thailand) questioned the 6th Committee: “what would be left for the Commission to work on that might be of

use to the international community?” See Summary Records of the 19th meeting of the Sixth Committee of the

UN General Assembly in its 68th session, UN Doc. A/C.6/68/SR.19 (2013) at para. 27. 42 Submission by Vanuatu on behalf of AOSIS, “Draft annex relating to Article 23 (Insurance) for inclusion in the

revised single text on elements relating to mechanisms (A/AC.237/WG.II/Misc.13) submitted by the Co-

Chairmen of Working Group II” (1991), reproduced in Intergovernmental Negotiating Committee for a

Framework Convention on Climate Change, 4th session, “Elements relating to mechanisms”, UN Doc.

A/AC.237/WG.II/CRP.8 (1991) 2 at 2, para. 1(5). 43 Ibid. 44 Ibid., at 7 (para. a) and 9 (para. i). 45 Bodansky, supra note 34 at 528. 46 A non-negligible, although purely discursive concession was made when developed states agreed to a text

attributing their leading role, resulting from the principle of common but differentiated responsibilities, “to [their]

historical responsibility” for climate change. Decision 1/CP.16, “The Cancun Agreements: Outcome of the work

of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention” (2010), 2nd recital before

para. 36 [“Cancun Agreements”]. The UNFCCC had noted the historical contribution of developed nations, but it

had not made any explicit link with the principle of common but differentiated responsibilities. 47 “Bali Action Plan,” supra note 3 at para. 1(c)(iii). The provision in a preliminary draft extended to all

“vulnerable developing countries.” See Draft decision 1/CP.13: Consolidated text prepared by the co-facilitators

on agenda item 4 (Report of the co-facilitators of the dialogue on long-term cooperative action to address climate

change by enhancing implementation of the Convention), FCCC/CP/2007/CRP.1 (2007), at para. 1(c)(iii). 48 “Bali Action Plan,” supra note 3 at para. 1 (chapeau).

8

where the concept soon appeared to be side-lined in the arduous negotiations focusing for the

greatest part on climate change mitigation. Consistently with their opposition to a recognition

of responsibility, some developed states attempted to “avoid discussions related to proposals

around compensation for loss and damage”49 by proposing an alternative focus on risk

management, in particular through risk-sharing mechanisms and disaster-risk-reduction

strategies.

After three years and little progress, the 2010 Cancun Agreements established a “work

programme,” assigned to the Subsidiary Body for Implementation, in order, again, “to consider,

including through workshops and expert meetings, as appropriate, approaches to address loss

and damage associated with climate change impacts in developing countries that are

particularly vulnerable to the adverse effects of climate change.”50 The Cancun Agreements

also clarified that this work programme would cover “the impacts related to extreme weather

events and slow onset events,”51 such as “sea level rise, increasing temperatures, ocean

acidification, glacial retreat and related impacts, salinization, land and forest degradation, loss

of biodiversity and desertification.”52 The following year, the Durban conference defined three

thematic areas for this work programme in order to identify possible measures to be taken under

the Convention.53

While developed states continued to oppose any reference to “redress” or “compensation,”54

they came slowly to admit that addressing loss and damage requires some financial measures.

The 18th Conference of the Parties to the UNFCCC in Doha in 2012 agreed that negotiations

on loss and damage under the Convention should be concerned, among others, with “enhancing

action and support, including finance, technology and capacity building.”55 The following

years, the 19th Conference of the Parties established the Warsaw International Mechanism for

loss and damage56 and, in the same decision, it “request[ed] developed country Parties to

provide developing country Parties with finance, technology and capacity-building.”57 More

recently, financial matters were listed among the questions to deal with through a two-year

workplan of the Warsaw international mechanism approved by the 20th Conference of the

49 Warner and Zakieldeen, supra note 33 at 4. 50 Cancun Agreements, supra note 46, para. 26. The work programme was conducted within the Subsidiary Body

for Implementation [“SBI”]. 51 Ibid., para. 25. 52 Ibid., para. 25, note 3. 53 UNFCCC, Decision 7/CP.7, “Funding under the Convention” (2001). These thematic areas are: (1) “Assessing

the risk of loss and damage … and the current knowledge of the same,” (2) developing “a range of approaches to

address loss and damage,” and (3) defining “the role of the Convention.” 54 A draft decision text adopted at the 37th session of the SBI included multiple references to compensation. See

UNFCCC SBI, “Approaches to address loss and damage associated with climate change impacts in developing

countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity,

Draft conclusions proposed by the Chair,” FCCC/SBI/2012/L.44 (2012), Annex. Yet, Decision 3/CP.18, adopted

on the basis of this draft, contains no reference to compensation. See UNFCCC, Decision 3/CP.18, “Approaches

to address loss and damage associated with climate change impacts in developing countries that are particularly

vulnerable to the adverse effects of climate change to enhance adaptive capacity” (2012) [“Approaches to address

loss and damage”]. Discussions on compensatory financial mechanisms remain generally side-lined in the work

programme on loss and damage. See e.g. “Report on the expert meeting to consider future needs, including

capacity needs associated with possible approaches to address slow onset events,” Note by the Secretariat,

FCCC/SBI/2013/INF.14 (16 October 2013), where a compensatory financial mechanism is addressed in no more

than one single sub-paragraph (para. 32(b)). 55 Approaches to address loss and damage, supra note 54, para. 5(c). 56 Warsaw international mechanism, supra note 3, para. 1. 57 Ibid., para. 14.

9

Parties (Lima, 2014).58 The Warsaw international mechanism is set to be reviewed at the 22nd

Conference of the Parties in 2016.59

Like the principle of common but differentiated responsibilities, the concept of loss and

damage could only break through climate change negotiations on the basis of a constructive

ambiguity. On the one hand, some developing countries have promoted the concept of loss and

damage on the agenda of climate change negotiations in order to raise awareness of the adverse

consequences of climate change in developing countries and to call for some form of

reparation. On the other hand, developed states have generally tried to confine the discussion

on ways to reduce or avoid loss and damage, for instance through disaster risk reduction.60 As

such, the vision of loss and damage promoted by developed states essentially replicates

ongoing discussions on climate change adaptation with, at most, an increased emphasis on

building resilience.61

C. The Rationale for Climate Change Reparations

Claims for the responsibility of industrial nations for causing climate change have often been

denounced as the “fanatic” attitude of fund-thirsty nations62 or as attempts to solve global

inequalities instead of “just” addressing climate change.63 Yet, instead of an aim of its own, the

advocates of climate change reparations often promote climate change reparations as an

instrument to foster climate change mitigation and, perhaps, adaptation. In other words, the

proponents of climate change reparations do not wish for huge financial penalties as

compensation for the harm already inflicted to them as much as they desire that relevant

measures be taken promptly to cease the infliction of similar harms.

Climate change reparations could help foster efforts to mitigate climate change in different

ways. By internalizing the negative externalities of GHG emissions in application of the

nascent polluter pays principle,64 they would incentivize a reduction of GHG emissions in

58 “Initial two-year workplan of the Executive Committee of the Warsaw International Mechanism for Loss and

Damage associated with Climate Change Impacts,” in Annex II of the Report of the Executive Committee of the

Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts,

FCCC/SB/2014/4 (2014). 59 Warsaw international mechanism, supra note 3, paras. 9 and 10. 60 See generally Warner and Zakieldeen, supra note 33. 61 Thus, developed states have sometimes criticized the concept of loss and damage as duplicative of existing

efforts on climate change adaptation. See for instance Submission of Norway, “Work programme on approaches

to address loss and damage associated with climate change impacts in developing countries that are particularly

vulnerable to the adverse effects of climate change to enhance adaptive capacity” (2 October 2012), reproduced

as Paper 2 in UNFCCC Secretariat, “Views and information from Parties and relevant organizations on the

possible elements to be included in the recommendations on loss and damage in accordance with decision

1/CP.16,” FCCC/SBI/2012/MISC.14, 13, at 14. While the Bali Action Plan (supra note 3) and the Cancun

Agreements (supra note 46) included loss and damage as part of “enhanced action on adaptation,” developing

states have constantly claimed that loss and damage should constitute a third pillar beyond mitigation and

adaptation. See e.g. “Warsaw establishes international mechanism for loss and damage” (Nov.-Dec. 2013)

279/280 Third World Resurgence 15-18. 62 See for instance UN Senate, 105th Cong., 143 Cong. Rec. S8117 (25 July 1997) (debates on the adoption of the

Byrd-Hagel resolution). 63 Thus, Posner and Weisbach criticize those who “treat climate negotiations as an opportunity to solve some of

the world’s most serious problems – the admittedly unfair distribution of wealth across northern and southern

countries, the lingering harms of the legacy of colonialism, and so forth.” See Eric A Posner and David A

Weisbach, Climate Change Justice (Princeton: Princeton University Press, 2010) at 5. 64 The polluter-pays principle is not recognized as such in international law as it is in certain domestic laws. See

for instance Sands and Peel, supra note 10 at 228-233.

10

industrial nations. Perhaps more importantly than this economic incentive, climate change

reparations would constitute a political impetus in favour of climate change mitigation. They

would in particular build domestic political support for adequate climate change policies by

providing an assessment of the overall impacts of climate change and by informing domestic

constituencies. Although advocacy for climate change reparations will not constrain any state

to any course of action, it establishes solid cognitive bases on which ethical discourses for

climate change mitigation could be constructed. Perhaps most importantly, climate change

reparations also need to re-affirm the rule of law by sanctioning the breach of an international

obligation, in order to foster compliance in international relations. By contrast, the purely

restitutive function of climate change reparations – as an attempt to repair an actual injury – is

arguably not, and should not be the first priority of its advocates.

Climate change reparations need to be designed so that they can fulfil their instrumental and

somewhat pragmatic function of promoting climate change mitigation. In this regard, any

demand for full reparation is an impediment to the argument for climate change reparation, as

it is likely to trigger blank rejection on the part of industrial states. Most obviously, full

reparation is unlikely to be politically acceptable on the part of industrial states. Full reparation

could fuel political support to climate change denial, an easier stand for many economic lobbies

and even industrial states’ politicians when the stakes are simply too high to conceive any

possible compromise. Even if it could be imposed, full reparation would risk to create

animosity among nations and, in any case, to divert well-needed resources for climate change

mitigation policies in industrial nations.

Most importantly, full reparation is not necessary in order to incentivize adequate climate

change mitigation. Imposing reparations for past emissions will have little direct consequences

on the present conduct of industrial states, except perhaps through diffuse deterrence. Full

reparation is not necessary to constitute an appropriate incentive for climate change mitigation,

not even regarding current GHG emissions. The theory of marginal utility suggests that what

determines states conduct is not the mean cost imposed on all GHG emissions, but the marginal

cost of additional GHG emissions – the sanction that would be imposed on that state for the

last, avoidable unit of GHG emissions. In more concrete terms, this suggests that the most

efficient system of reparations would consist in high sanctions on marginal emissions whose

payment could be avoided by taking realistic measures within a given timeframe.65

II. THE TIMID RECOGNITION OF LESS-THAN-FULL REPARATION IN

INTERNATIONAL LAW

Climate change is not the only situation where full reparation does not appear as an opportune

settlement of claims for responsibility. Even though article 31(1) of the Draft Articles on State

Responsibility affirms a general obligation of a responsible state to make full reparation,

debates within the International Law Commission recognized the possibility of a diminution

of reparations in certain situations (A). A brief review of state practice in several fields suggests

elements of a recognition of less-than-full reparation in customary international law (B).

A. The position of the International Law Commission

Article 31 of the Draft Articles on State Responsibility asserts that a responsible State is under

the obligation to “make full reparation for the injury caused by the internationally wrongful

65 This suggests solutions similar to the “grandfathering” of GHG emissions rights.

11

act.”66 Provisions of the Draft Articles on State Responsibility exclude excessive forms of

restitution67 and satisfaction,68 but they do not limit the obligation of a State to make full

reparation, in particular through compensation. This clear and unqualified support for full

reparation conceals a more lively debate, during the discussion of the topic by the International

Law Commisson, about what constitutes a just and adequate remedy. In 1959 already, when

the ILC was still focused on State responsibility in the context of the takings of foreign

property, Special Rapporteur García Amador recognized “cases and situations in which

compensation which does not cover the full value of the expropriated property must be

regarded as valid and effective.”69 At the occasion of a more structured debate on secondary

obligations in the mid-1990s, some ILC members contended that “insistence on full reparation

could be fraught with consequences for developing nations,”70 especially those with limited

financial capacities. Igor Lukashuk argued that “[t]he sad experience of the Versailles

settlement which had become one of the causes of the later war had shown that [full restitution]

was often impossible and even undesirable,” suggesting that “a system of partial restitution”

could be preferable in certain circumstances.71

In accordance with such suggestions, in the document adopted in first reading in 1996, Draft

Article 42(3) precluded measures of reparation that would “result in depriving the population

of a State of its own means of subsistence,”72 thus paraphrasing a provision of the International

Covenant on Economic, Social and Cultural Rights.73 In the Commentary, the ILC

acknowledged this limitation as the application of “a legal principle of general application.”74

This provision, however, was deleted during the second reading. States, in their comments on

the first reading, had viewed the phrasing of this provision as too vague, hence likely to create

“avenues for abuses”75 or a “pretext by the wrongdoing State to refuse full reparation.”76 Some

States had however clearly supported certain limitations to the obligation to make full

reparation, suggesting a more precise provision on the conditions for diminution of reparations

instead of the mere deletion of Draft Article 42(3).77

66 Draft Articles on State Responsibility, supra note 12, 31 67 See ibid., art. 35(2), excluding restitution when it would “involve a burden out of all proportion to the benefit

deriving from restitution instead of compensation.” 68 See ibid., art. 37(3), excluding satisfaction when it would “be out of proportion to the injury” or if it would

“take a form humiliating to the responsible State.” 69 F.V. Garcia-Amador, Fourth report on State Responsibility, in (1959) Yearbook of the International Law

Commission, vol. II.1, at para. 89. 70 Statement of S. Rao, in Summary Records of the 2314th meeting of the International Law Commission, UN

Doc. A/CN.4/SR.2314 (1993), at para. 78. 71 Summary Records of the 2392th meeting of the International Law Commission, UN Doc. A/CN.4/SR.2392

(1995), at para. 31 (using the word “restitution” in the general sense of “reparation”). See also the statement of C.

Tomuschat, in ibid. at para. 37; statement of A. Mahiou, in Summary Records of the 2314th meeting of the

International Law Commission, UN Doc. A/CN.4/SR.2314 (1996), at para. 19; Summary Records of the 2454 th

meeting of the International Law Commission, UN Doc. A/CN.4/SR.1454 (1996), at para. 19. 72 Draft Articles on the Responsibility of States for Internationally Wrongful Acts adopted in first reading, in

(1996) Yearbook of the International Law Commission, vol. II.2, at 58 [“First reading of the Draft Articles on

State Responsibility”]. 73 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S.3 (entered

into force 3 January 1976), art. 1(2): “In no case may a people be deprived of its own means of subsistence.” 74 First reading of the Draft Articles on State Responsibility, supra note 72, commentary under art. 42, para. 8(a). 75 “Comments and observations received by Governments,” in (1998) Yearbook of the International Law

Commission, vol. II.1, 81, at 146 (United States). 76 “Comments and observations received by Governments,” in (1999) Yearbook of the International Law

Commission, vol. II.1, 101, at 108 (Japan). 77 See in particular “Comments and observations received by Governments” (1998), supra note 75, at 145-146

(United Kingdom); “Comments and observations received from Governments,” in (2001) Yearbook of the

International Law Commission, vol. II.1, 33, at 61-62 (Poland).

12

The decision of the International Law Commission to delete Draft Article 42(3) in the

second reading, and not to try to revise it, certainly had much to do with the legitimate desire

of this institution to bring to an end the long-lived project on state responsibility by avoiding

difficult issues that appeared of limited direct relevance.78 Considering the question in practical

terms, special rapporteur James Crawford noted that “there was no reason to fear that the

requirement to [make full reparation] would deprive [the responsible] State of its own means

of subsistence.”79 As he contended, “[v]astly greater liabilities of States in the context of

international debt arrangements were settled every year than ever arose from compensation

payments.”80 Some members disagreed, in particular Raoul Goco and PS Rao, who suggested

that any reference to “full” reparation was unnecessary: reparation should, as Rao submitted,

just be “as complete as possible” in view of the particular circumstances of each case.81

B. Less-than-full Reparation in Customary International Law

In several fields of international relations, less-than-full reparation has been either accepted, or

even actively promoted as just and adequate remedy. The recognition of less-than-full

reparation in four particular fields is briefly described: war and other mass atrocities (1), trade

measures (2), expropriations (3), and hazardous activities (4).

1. Wars and other mass atrocities

War reparations is an obvious case where less-than-full reparation is the norm. The Versailles

Treaty of 1919,82 collectively remembered as one of the causes leading to the Second World

War, is the example that confirms the rule – the evidence that war reparations must not be full

reparations.83 Very limited reparations were requested from the defeated parties to the Second

World War;84 to the contrary, in fact, West Germany soon received substantial financial aid

from the United States under the Marshal Plan. When Germany engaged voluntarily in

negotiations with Israel and non-governmental Jewish organizations, no serious demand was

78 Thus, the reports of the brief discussions of the question reflect a focus on the necessity of any limitation to the

obligation to make full reparation, given the general nature of the project on the responsibility of states and the

difficulty in defining a precise limitation to the obligation to make full reparation. See in particular the statement

of James Crawford in the Summary Records of the 2613th meeting of the International Law Commission (2000),

at para. 17. 79 Ibid para. 18. 80 Ibid. See also James Crawford’s Third Report on State Responsibility, in (2000) Yearbook of the International

Law Commission, vol. II.1, at 3 para. 42: “there is no history of orders for restitution in the narrow sense, or of

the award of damages by way of satisfaction, which have threatened to deprive a people of its own means of

subsistence.” 81 See the Summary Records of the 2615th meeting of the International Law Commission (2000), at paras. 52 amd

55. 82 Versailles treaty, 28 June 1919, [1919] UKTS 4 (Cmd 153) (entered into force on 20 January 1920), art. 232. 83 Christian Tomuschat, “International Law: Ensuring the Survival of Mankind on the Eve of a New Century:

General Course on Public International Law” (2s001) 281 Collected Courses of the Hague Academy of

International Law, at 293. 84 See in particular Treaty of Peace with Japan, 8 September 1951, 136 U.N.T.S.45 (entered into force 5 August

1952), art. 14(1).

13

made for full reparation;85 the resulting agreement recognized the determination of the German

government “to make good the material damage” caused by the Shoah.86

Despite numerous conflicts in the last half of a century, there is little practice of reparations

being paid at all in such contexts. Christine Gray noted that, in most cases where the UN

General Assembly or UN Security Council condemned mass atrocities, no measures of

reparation was indicated – partly because of uncertainties as to the scope of remedial

obligations, and partly because of a more pragmatic emphasis on cessation and guarantees of

non-repetition rather than reparation.87 As she notes, “[t]he future conduct of the wrongdoing

state is often more important to its victim that any award of compensation for past unlawful

action.”88

The reparations imposed by the UN Security Council upon Iraq for its invasion of Kuwait

in 1990 is an interesting exception to the general lenience of states regarding war reparations.

This reparations scheme, administered by the UN Compensation Commission, was however

strongly criticized by the doctrine.89 It was interpreted by international jurisdictions as an

exception justified only in relation to “breaches of international law of unusual seriousness and

extent.”90 And yet, even in this case, the overall amount of reparation was limited to 30 per

cent of the annual value of experts of petroleum and petroleum products from Iraq, a threshold

determined by the UN Secretary General on the basis of a rough assessment of “the requirement

of the people of Iraq, Iraq’s payment capacity…, and the needs of the Iraqi economy.”91

More recently, the 2000 “Algiers” Agreement established the Eritrea-Ethiopia Claims

Commission (EECC), an arbitral tribunal tasked with asserting reciprocal reparation claims

arising from the armed conflict between these two countries.92 The two states had very limited

payment capacities and they were claiming massive reparations: Ethiopia’s initial claims for

damages, nearly USD 15 billion, was several folds higher than Eritrea’s yearly national

product.93 In this context, the EECC briefly contemplated “to limit its compensation awards in

some manner to ensure that the ultimate financial burden imposed on a Party would not be so

excessive, given its economic condition and its capacity to pay, as to compromise its ability to

meet its people’s basic needs.”94 The EECC did not eventually need to implement limit its

compensation awards following its finding of relatively limited and largely balanced damages,

resulting only in a net payment of Ethiopia of about USD 10 millions.

85 See for instance M. Sharett, 14 March 1951, cited in N. Sagi, German Reparations: A History of the Negotiations

(New York: Magnes Press, 1980) at 55, requesting a sum estimated to represent a quarter of the property that was

seized. 86 Bilateral agreement between Germany and Israel, signed in Luxembourg on 10 December 1952, 162

U.N.T.S.206 (entered into force 27 March 1953), 1st and 2nd recitals [Luxembourg Agreement]. 87 C.D. Gray, Judicial Remedies in International Law (Clarendon, Oxford 1987) at 216-217. 88 Ibid., at 217. Gray notes that the president of Guinea once set aside considerations of the UN Security Council

to require Portugal to take some measures of reparation, on the motive that only independence could be an

appropriate measure of reparation. See ibid. and (1971) UN Monthly Chronicle No 1, p 18. 89 See for instance the discussion in Andrea Gattini, “The UN Compensation Commission: Old Rules, New

Procedures on War Reparations” (2002) 13 European Journal of International Law 161. 90 Eritrea-Ethiopia Claims Commission, Decision number 7 of 27 July 2007 providing guidance relating jus ad

bellum liability, XXVI Reports of International Arbitral Awards 10, at 19, para. 29. 91 Note of the Secretary-General, UN Doc. S/22559 (1991), at para. 7. See also UNSC Res. 705 (1991), para. 2. 92 Agreement between the Eritrea and Ethiopia, 12 December 2000, 2138 U.N.T.S.94, art. 5 [“Algiers

Agreement”]. 93 See Eritrea-Ethiopia Claims Commission, decision of 17 August 2009, Final Award: Eritrea’s Damages Claims,

decision of 17 August 2009, XXVI Reports of International Arbitral Awards 505, at 522, para. 18. 94 Ibid., at para. 22.

14

2. Trade measures

Likewise, in the pursuit of their international commercial relations, states have generally agreed

that full reparation was neither their normal practice, nor even a desirable outcome. The “first

objective” of dispute settlement in international trade law, according to the WTO’s Dispute

Settlement Understanding, “is usually to secure the withdrawal of the measures concerned if

these are found to be inconsistent with the provisions of any of he covered agreements.”95

Accordingly, upon finding a domestic measure inconsistent with an international trade

agreement, a Panel or the Appellate Body shall only “recommend that the Member concerned

bring the measure into conformity.”96 International trade law does not generally deal with the

injuries resulting from such breaches of trade obligations, and the term “compensation” is used

to mean “temporary measures available in the event that the recommendations and rulings are

not implemented within a reasonable period of time.”97

A handful of isolated panel decisions concerning cases of antidumping or countervailing

duties have however recommended the restitution of the duties wrongfully levied,98 the last of

which (and the only one under the WTO) being the Australia – Automotive Leather II (Article

21.5 – United States) case in 2000.99 In the latter case, the retrospective measures, which had

not been requested, were vehemently criticized by States representatives at the occasion of the

adoption of the Panel report,100 on the grounds that retrospective measures were not only

inconsistent with relevant treaty provisions,101 but also “contrary to GATT/WTO custom and

practice.”102 As the claimant itself, the United States, noted, there was “a legitimate basis for

not requiring the repayment of recurring subsidies that had been granted in the past,” in

particular the understanding that “termination of the recurring subsidies programme ha[ve] an

enforcement effect that [is] sufficient to accomplish the objective”103 of the dispute settlement.

3. Expropriations

Whether or not takings of foreign properties are to be considered a “wrongful” act or not`, they

have led to similar discussions as to the nature of the compensation obligations of the

expropriating state. A broad consensus emerged over the last half of a century according to

which less-than-full compensation might be justified in large programs of nationalizations.

Thus, long deliberations in the UN General Assembly defined, in elusive terms, a duty to pay

95 Understanding on rules and procedures governing the settlement of disputes, 15 April 1994, 1869 U.N.T.S.401

(entered into force 1 January 1995), art. 3(7) [“DSU”]. 96 Ibid., art. 19(1). See also Understanding Regarding Notification, Consultation, Dispute Settlement and

Surveillance, 28 November 1979, GATT Doc L/4907, at 210. 97 DSU, supra note 95, art. 22(1). 98 See M. Matsushita, T. Schoenbaum and P.C. Mavroidis, The World Trade Organization: Law, Practice, and

Policy (Oxford: Oxford University Press, 2003) at 78; P. Grané, “Remedies Under WTO Law” (2001) 4 Journal

of International Economic Law 755. 99 WTO, Australia – Automotive Leather II (Art 21.5), decision of 21 January 2000, WT/DS126RW, para. 6.42.

The Panel’s decision was not based on art. 19(1) DSU, but on a similar provision: art. 4.7 of the Agreement on

Subsidies and Countervailing Measure, 15 April 1994, 1867 U.N.T.S. 14. 100 See, Minutes of Meeting of the WTO Dispute Settlement Body on 11 February 2000, WT/DSB/M/75, at 5.

The report was criticized by representatives of the United States, Australia, Brazil, Canada, Japan, Malaysia and

the European Union; Hong Kong was the only party supporting its conclusion. 101 Ibid., at 8 (Japan). 102 Ibid., at 7 (Canada). 103 Ibid., at 9 (United States).

15

“appropriate compensation … in accordance with international law.”104 Likewise, the Institut

de Droit International alluded to “an appropriate balance [to] be assured between the interests

of the investor and the public purposes of the State.”105 The American Law Institute’s second

restatement of the foreign relations law of the United States acknowledged the existence of

certain “special circumstances,” which it left undefined, that could justify a derogation to full

compensation in cases of expropriation.106

Clearly, these observations do not support the existence of an obligation to make full

reparation in cases of expropriation. A summary review of pre-20th Century arbitral litigation

evidences a startling gap between claims for compensation and awards, suggesting that full

compensation was not the practice.107 As M. Sornarajah noted, “[t]here is no indication in

modern practice of full compensation ever having been paid as compensation for

nationalization.”108 Since the Second World War, most investment disputes have indeed been

settled through lump-sum agreements providing only partial compensation.109 This practice of

lump-sum agreements, however, reflects the possibility for states – including expropriating

states that have no material interests, but only reputational interests in negotiating – to come to

a mutually beneficial agreement.

4. Hazardous activities

Of a more direct relevance to climate change reparations is the general reluctance to apply full

reparations – or, sometimes, any reparations at all – in relations to transboundary harms arising

out of hazardous activities. One of the greatest industrial disasters of the 20th Century, the

Chernobyl nuclear accident, led to no claims for reparations, the general understanding being

that “priority should be given, in the wake [of the accident], to endeavours of another nature.”110

More generally, the International Law Commission could only affirm a general obligation

of responsible states to make full reparation after having differentiated the topic of state

responsibility from that of state “liability” for the injurious consequences arising out of

hazardous activities.111 The latter topic included not only ultra-hazardous activities involving

a low probability of causing disastrous transboundary harm, but also activities highly likely to

cause significant transboundary harm112 – showing that the line between state liability and state

104 UNGA Res. 1803 (XVII) (1962) part I, para. 4. 105 Institut de Droit International, Tokyo Res. 2013/1, “Legal Aspects of Recourse to Arbitration by an Investor

against the Authorities of the Host State under Inter-State Treaties,” art. 14(2). 106 American Law Institute, Second Restatement of the Foreign Relations Law of the United States, para. 188(2):

“In the absence of the conditions specified in Subsection (1), compensation must nevertheless be equivalent to

full value unless special circumstances make such requirement unreasonable.” See also ibid, Explanatory Note

(c): “The law is not settled as to what special circumstances may make the requirement of full value unreasonable.” 107 J.M. Sweeney, “The Restatement of the Foreign Relations Law of the United States and the Responsibility of

States for Injury to Aliens” (1964) 16 Syracuse Law Review 762, 766. 108 M. Sornarajah, The International Law on Foreign Investment (Cambridge: Cambridge University Press, 2010)

at 417. 109 See generally R.B. Lillich and B.H. Weston, International Claims: Their Settlement by Lump Sum Agreements

(Charlottesville: University Press of Virginia, 1975); B.H. Weston, D.J. Bederman and R.B. Lillich, International

Claims: Their Settlement by Lump Sum Agreements, 1975-1995 (Ardsley: Martinus Nijhoff, 1999). 110 Correspondence with the Swedish Embassy in London, 10 December 1987, cited in P. Sands, Chernobyl:

Transboundary Nuclear Air Pollution – The Legal Materials (Cambridge: Cambridge University Press, 1988) at

27. See also A. Kiss, “L’accident the Tchernobyl et ses consequences au point de vue du droit international”

(1986) 32 Annuaire français de droit international 139, 151-152. 111 (1973) Yearbook of the International Law Commission, vol. II, at 169, para. 39. 112 Prevention of Transboundary Harm from Hazardous Activities, (2001) Yearbook of the International Law

Commission, vol. II.2, 146, art. 2(a); Draft principles on the allocation of loss in the case of transboundary harm

16

responsibility is sometimes particularly thin, to say the least.113 Yet, the International Law

Commission identified radically different secondary obligations in both topics, putting clearly

more emphasis on prevention and harm mitigation than on reparation proper with regard to

state liability.114

When it did address reparation, the International Law Commission only recognized an

obligation for the liable state to provide “prompt and adequate”115 compensation, clarifying

that this meant that the reparation should not be “grossly disproportionate to the damage

actually suffered, even if it is less than full.”116 A previous working draft of the International

Law Commission elaborated on the “principle that the victim of harm should not be left to bear

the entire loss,”117 here again clearly recognizing the existence of “circumstances in which the

victim of significant transboundary harm may have to bear some loss.”118 As will be further

discussed below, the degree of “culpability” of the liable state is certainly an element to take

into account in assessing the level of reparations. As Phoebe Okowa noted, “take into account

the gravity of the wrongful act, the importance of the obligation breached, and the degree of

fault or the wilful intent of the wrongdoer.”119

III. JUSTIFICATIONS FOR A DIMINUTION OF CLIMATE CHANGE

REPARATIONS

Without developing a systematic doctrine of less-than-full reparation in international law, this

section aims at identifying the relevant elements of justification for a diminution of climate

change reparations on the basis of the analogues presented above. It suggests that a diminution

of climate change reparations could possibly be justified by the limited capacity of responsible

states to pay (A), the complex and indirect causal link between excessive GHG emissions and

the impacts of climate change (B), the disproportion between the injury and the perceived

wrongfulness of excessive GHG emissions (C), and the limits of the theory of collective

responsibility (D).

A. Capacity of the Responsible State to Pay

As mentioned above, the International Law Commission accepted, during the first reading of

its project on state responsibility, that reparation shall “[i]n no case … result in depriving the

arising out of hazardous activities, in (2006) Yearbook of the International Law Commission, vol. II.2, 110,

commentary under art. 1, at para. 2 [“Draft principles on the allocation of loss”]. 113 For instance, the International Law Commission has analysed the Trail Smelter case both as a breach of an

obligation from which the responsibility of a state can arise and as the archetypical case of international liability

for injurious consequences arising out of acts not prohibited by international law. Regarding the former, see Draft

Articles on State Responsibility, supra note 12, commentary under art. 14, at para. 14. Concerning the latter, see

the report of the working group on international liability for injurious consequences arising out of acts not

prohibited by international law, in (1996) Yearbook of the International Law Commission, vol. II.2, 100 (Annex

I), at 103, general commentary, para. 2 [“1996 report on international liability”]; Draft principles on the allocation

of loss, supra note 112, at 122, commentary under art. 2, at para. 1. 114 See Prevention of Transboundary Harm from Hazardous Activities, supra note 112, at 146; Draft principles

on the allocation of loss, supra note 112, principle 3(b). 115 Draft principles on the allocation of loss, supra note 112, principle 4. 116 Ibid., commentary under principle 4, para. 8. 117 1996 report on international liability, supra note 113, art. 21. 118 Ibid., commentary on art. 21, para. 4. 119 Phoebe N. Okowa, State Responsibility for Transboundary Air Pollution in International Law (Oxford: Oxford

University Press, 2000) at 209.

17

population of a State of its own means of subsistence.”120 This provision was only removed in

the second reading because it was perceived as prone to favour abusive claims and generally

irrelevant to the cases typically brought before international jurisdictions.121 But beyond

international jurisdictions, international law also has a role to play in guiding political

negotiations and in faming collective expectations.

The general practice of states, in particular with regard to war reparations or with the

transboundary harms arising out of hazardous activities, indicates a concern not to impose full

reparation when this would exceed the payment capacity of a state.122 Simply delaying the

payment of full reparation based on a plea of necessity or force majeure123 is not enough in

cases where it represents a great proportion of, or even several folds the gross domestic product

of the responsible state.124 As Christian Tomuschat noted in his course in the Hague Academy

of International Law in 2001, “large-scale damage require other rules than individual cases of

wrongdoing.”125

It may appear counterintuitive for industrial states, which developed at the expenses of the

global environment, to claim an inability to pay full reparation to least developed states that

are severely affected by the adverse impacts of climate change. After all, the recognition of the

capacity to pay as a justification for a diminution of reparation was mostly thought of as a

defence that developing countries could used against developed ones.126 However, given the

tremendous variability in diverse assessments of the injuries caused by climate change, which

are largely contingent of value-loaded assessment (e.g. the discounting rate applicable to future

harms),127 the recognition of the capacity of responsible states to pay full reparation is a

potential safeguard against excessive claims.

The capacity to pay criteria should not be approached as a clear-cut threshold, a test

determining whether or not a state is capable of paying reparations in full. In fact, the need of

the responsible state to keep sufficient resources to protect the human rights of its population

is virtually unlimited.128 Yet, protection resources have a diminishing marginal utility: the first

resources are essential to protect the most basic needs of the populations, whereas additional

resources are less immediately necessary. Therefore, consideration for the capacity of industrial

states to pay climate change reparations requires a balancing of interests, which should also

take the protection needs of the affected states into account.

Beyond the capacity of industrial states to pay, the capacity of international institution to

make them pay also deserves careful consideration, including from a (pragmatic) legal

perspective. It would not productive and it could be counterproductive, and it is hence

120 First reading of the Draft Articles on State Responsibility, supra note 72, at 58, art. 42(3). 121 See supra notes 78-80 and accompanying text. 122 Such grounds for a diminution of a payment were recognized, just a few years after the adoption of Draft

Articles on State Responsibility, by the Eritrea-Ethiopia Claims Commissions. See supra note 93. 123 See James Crawford’s Third Report on State Responsibility, supra note 80, at para. 41, referring to Russian

Indemnity (1912) XI Reports of International Arbitral Awards 421, at 443. This case, however, related to a

transient inability to pay. 124 See e.g. supra note 93. 125 Christian Tomuschat, supra note 84 at 293. Tomuschat further noted that, in the determination of war

reparations, “account was always taken of the actual capacity to pay.” 126 See for instance supra note 70. 127 See in particular William D. Nordhaus, “A Review of the Stern Review on the Economics of Climate Change”

(2007) 45 Journal of Economic Literature 686. 128 International Covenant on Economic, Social and Cultural Rights, supra note 73, art. 2.1.

18

undesirable for a court to “grant vain and useless relief.”129 In sensitive political contexts where

the conduct of the responsible State leaves no doubt that this state will not comply with a

judgment requiring full reparation, international jurisdictions might have sensible thoughts

about providing a mutually acceptable settlement that stops short of full reparation.130 When

there is only a tiny political window to bend the conduct of states continuingly failing to limit

domestic GHG emissions and thus causing great and possibly existential harm to the global

environment, priority should arguably be the prevention of further harm through climate

change mitigation rather than the imposition of expansive reparations. While trembling at the

idea of tarnishing the appearance of the independence of international law from power,

international lawyers should not suggest full reparations when the most likely consequence of

this suggestion would be to severe international relations, derail on-going negotiations, and

possibly hinder essential negotiations on climate change mitigation, thus defeating the primary

purposes of international law.131

B. Indirect Causation of Individual Harms

Clear evidence shows that certain extreme weather events have become more frequent in many

regions of the worlds132 and that such trends will amplify in the future.133 Yet, it remains

problematic to attribute any concrete loss and damage to climate change because any given

weather event could possibly “have occurred by chance in an unperturbed climate.”134 In

particular, it is virtually impossible to make a clear distinction between “human-caused

weather” and “tough-luck weather.”135 Tools are being developed for a statistical attribution of

weather events to climate change (i.e. by estimating the increased likelihood of such events),136

but this is difficult to reconcile with the binary causal attribution generally assumed by the law

of state responsibility. Article 31 of the Draft Articles on State Responsibility defined the

obligation to make full reparation in relation to the “injury caused by the internationally

129 Williams v Garner, 268 So. 2d. 56 (U.S., La. App. 1st Cir. 1972) at 61. 130 Such considerations are perhaps the explanation for a surprising reasoning of the International Court of Justice

regarding the remedial obligations of Serbia, in the case regarding the Application of the Convention on the

Prevention and Punishment of the Crime of Genocide (Bosnia v Serbia), judgment of 26 February 2007, [2007]

I.C.J. Rep. 43, para. 462-465. See discussions in Christian Tomuschat, “Reparation in Cases of Genocide” (2007)

5 Journal of International Criminal Justice 905; Marko Milanović, “State Responsibility for Genocide: A Follow-

Up” (2007) 18 European Journal of International Law 669 at 691 (noting that it would have been “far, far better

for the Court to provide no explanation at all as to why it was not awarding compensation in this concrete case

than for it to give the particular justification that it did”). 131 See in particular Charter of the United Nations, 26 June 1945, 892 UNTS 119 (entered into force 24 October

1945), art. 1. 132 IPCC, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation: A Special

Report of Working Groups I and II of the Intergovernmental Panel on Climate Change (New York: Cambridge

University Press, 2012) at 8 [“SREX”]. See also “Summary for Policymakers,” in IPCC, supra note 1, 3, at 5. 133 See SREX, supra note 132, at 13; “Summary for Policymakers,” supra note 132, at 20. 134 Dáithí A. Stone and Myles R. Allen, “The End-to-End Attribution Problem: From Emissions to Impacts”

(2005) 71(3) Climatic Change 303. 135 Mike Hulme, Saffron J. O’Neill and Suraje Dessai, “Is Weather Event Attribution Necessary for Adaptation

Funding?” (2011) 334(6057) Science 764, at 764. 136 See e.g. Pardeep Pall et al., “Anthropogenic Greenhouse Gas Contribution to Flood Risk in England and Wales

in Autumn 2000” (2011) 470(7334) Nature 382 at 382, proposing a “probabilistic event attribution framework”;

Huggel et al., “Loss and Damage Attribution” (2013) 3(8) Nature Climate Change 694; Myles Allen et al.,

“Scientific Challenges in the Attribution of Harm to Human Influence on Climate” (2006) 155 University of

Pennsylvania Law Review 1353. For a critique of this methodology, see in particular Mike Hulme, Saffron J

O’Neill and Suraje Dessai, “Is Weather Event Attribution Necessary for Adaptation Funding?” (2011) 334(6057)

Science 764.

19

wrongful act,”137 which it explained as an exclusion of damage “that is too ‘remote’ or

‘consequential’ to be subject of reparation.”138

Slow-onset environmental changes such as sea-level rise could be more directly attributed

to climate change. In any case, however, the actual loss and damage suffered by a population

largely depend on social factors, in particular the physical exposure of the population to the

environmental event139 and its vulnerability to this event.140 In a developing world with a

growing population, the scientific community has expressed high confidence that “increasing

exposure of people and economic assets have been the major cause of long-term increases in

economic losses from weather- and climate-related disasters.”141 No clear influence of climate

change on loss and damage from disasters could generally be demonstrated over the past

decades,142 and some studies suggest that the statistical “signal” of climate change could

generally remain concealed behind more important changes in exposure and vulnerability in

the decades to come.143

A pragmatic interpretation of the law of state responsibility suggests that neither full

reparation for all weather-related or climate-related loss and damage, nor no reparation at all

would be an adequate remedy to the indirect impacts of climate change.144 A parallel can be

drawn with precedents where partial reparation was indicated for indirect or not-fully

foreseeable injuries. Thus, in the Naulilaa case, an Arbitral Panel considered that Germany

should have anticipated that its attack on some Portuguese colonies would likely expose

Portugal to further turmoil in an instable colonial context, although it could not have foreseen

the nature and extent of the turmoil that would follow in Portuguese colonies. On this basis,

the Panel condemned Germany to the payment of an “equitable additional compensation”145

established ex aequo et bono.146 Likewise, the settlement of international disputes through

diplomatic negotiations has often led to the conclusion of lump-sum agreements representing,

in most cases, only a tiny fraction of complex injuries.147

C. Disproportion of the Injury to the “Culpability” of the Responsible State

137 Draft Articles on State Responsibility, supra note 12, 31(1). 138 Draft Articles on State Responsibility, commentary under art. 31, para. 10. 139 Exposure can be defined as “[t]he presence of people, livelihoods, species or ecosystems, environmental

functions, services, and resources, infrastructure, or economic, social, or cultural assets in places and settings that

could be adversely affected.” See “Summary for Policymakers,” in IPCC, supra note 6, at 5. 140 Vulnerability is “[t]he propensity or predisposition to be adversely affected.” It “encompasses a variety of

concepts and elements including sensitivity or susceptibility to harm and lack of capacity to cope and adapt.” See

ibid. 141 See “Summary for Policymakers,” supra note 132, at 9. See also Huggel et al., supra note 136, at 695. 142 “Summary for Policymakers,” supra note 132, at 9; Laurens M. Bouwer, “Have Disaster Losses Increased Due

to Anthropogenic Climate Change?” (2010) 92 Bulletin of the American Meteorological Society 39. 143 See in particular Laurens M. Bouwer, “Projections of Future Extreme Weather Losses under Changes in

Climate and Exposure” (2013) 33 Risk Analysis 915, noting that “the signal from anthropogenic climate change

is likely to be lost among the other causes for changes in risk, at least during the period until 2040.” 144 Precedents in international law, varying between a requirement of “direct,” “foreseeable” or “proximate” causal

relation, leave ample room for such a pragmatic interpretation. In fact, the International Law Commission itself

stated that “the question of remoteness of damage is not a part of the law which can be satisfactorily solved by

search for a single verbal formula.” Draft Articles on State Responsibility, supra note 12, commentary under art.

31, at para. 10. 145 Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises du sud de l’Afrique

(Portuval vi Germany), decision of 31 July 1928, II Reports of International Arbitral Awards 1011, 1032-33

[translated by the author]. 146 Ibid., decision of 30 June 1930, II Reports of International Arbitral 1035, at 1074. 147 See above, section III.C.

20

International law remedies aim at sanctioning a violation of an international obligation and at

repairing the resulting injury. International law remedies need to fulfil these two functions

concomitantly rather than alternatively.148 Thus, punitive damages – whereby remedies would

impose a sanction beyond the reparation of the injury – have generally been rejected in

international law.149 Likewise, less-than-full reparation should arguably be indicated when

there is a gross disproportion between the degree of “culpability” of the responsible state and

the extent of the injury – that is to say, in cases where a “less culpable” (e.g. inadvertent)

conduct causes large-scale injuries.150 In such cases, a complete transfer of the burden of the

injury on the responsible state could appear excessive,151 and an equitable distribution of the

burden of the injury between responsible and injured states should be conceived.

In this sense, Phoebe Okowa suggested in her authoritative study of state responsibility for

transboundary air pollution that “pecuniary compensation should in addition to repairing the

harm done take into account the gravity of the wrongful act, the importance of the obligation

breached, and the degree of fault or wilful intent of the wrongdoer.”152 Similar considerations

were instrumental in the decision of the International Law Commission to single out the

question of State “liability” for the harms arising out of hazardous activities, and to define a

regime of less-than-full reparation.153 When the working group of the International Law

commission proposed a list of relevant elements on the basis of which the nature and extent of

reparations could be negotiated, it put a certain emphasis on the “culpability” of the liable state

– for instance whether the liable state had taken appropriate prevention measures and measure

to minimize the harm, including through providing assistance to the affected states, and

whether it had shared the benefits drawn from the hazardous activity with other states.154 The

degree of “culpability” of the responsible state was also taken into account in other fields, and

could for instance contribute to explain the limitation of reparations for breaches of trade

commitments (to which less moral significance is given than, say, human rights obligations).155

This line of argument applies most straightforwardly to historical GHG emissions, in

particular before the emergence of a scientific consensus on the anthropogenic causes of

148 See Draft Articles on State Responsibility, supra note 12, commentary under art. 36, para. 3, noting that the

prevailing view is that “the consequences of an internationally wrongful act cannot be limited either to reparation

or to a ‘sanction’.” See also R. Ago, “Le délit international” (1939) 68 Collected Courses of the Hague Academy

of International Law 417 at 430-440. 149 See in particular Draft Articles on State Responsibility, supra note 12, commentary under art. 36, para. 4;

James Crawford, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013) at 523-

26; Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of 21 July 1989 on

compensatory damages, Series C, No 7, at para. 38. 150 See e.g. the statement of P.S. Rao in the Summary Records of the 2399th meeting of the International Law

Commission, UN Doc. A/CN.4/SR.2399 (1995), at para. 24. 151 Tomuschat, supra note 83, at 296-297. 152 Okowa, supra note 119, at 209. 153 See supra note 115-116 and accompanying text. Nothing would have prevented the International Law

Commission from approaching the strict liability regime regulating hazardous activities as primary rules (an

obligation of result to prevent a disaster from occurring) subject, in case of breach (i.e. the occurrence of a

disaster), to the general regime of State responsibility. See, in this sense, the statement of S. Fomba in the

Summary Records of the 2414th meeting of the International Law Commission, UN Doc. A/CN.4/SR.2414 (1995),

at para. 36; and the statement of Bennouna in the Summary Records of the 2450 th meeting of the International

Law Commission, UN Doc. A/CN.4/SR.2450 (1996), at paras. 28-29 and 33. 154 1996 report on international liability, supra note 113, art. 22. 155 See also, more generally, the statement of P.S. Rao in the Summary Records of the 2615th meeting of the

International Law Commission, UN Doc A/CN.4/SR.2615 (2000), at para. 55, arguing that “intentional wrongs

and other aspects” need to be factored into the determination of reparation in each particular case.

21

climate change. Here again, no clear line can be drawn as scientific evidence accumulated

progressively, since the early 1960s and until the early 1990s.156 Adopted in 1992, the UN

Framework Convention on Climate Change recognizes a clear general scientific consensus that

human activities were have consequences, possibly disastrous, on the climate system.157 There

is a compelling argument for discounting reparations for the adverse consequences caused by

excessive GHG emissions before the emergence of this scientific consensus, in particular

before the apparition of any scientific evidence at all. No wrong can reasonably be found when

large amounts of GHG was emitted without any possible knowledge of the harmful

consequences, when the dominant worldview considered nature as fundamentally inalterable.

For this historical period before the emergence of scientific evidence of anthropogenic climate

change, reparations could only be justified, perhaps, on the equitable ground of unjust

enrichment. However, as a scientific consensus was emerging about anthropogenic climate

change, interference with the climate system ceased to be purely accidental; it became at best

inadvertent, negligent, and arguably now grossly negligent. Therefore, as a consequence of

scientific progress, a greater degree of “culpability” should be attached to present emissions

than to past ones, and that a diminution of climate change reparations can more readily be

justified in relation to past GHG emissions than to present ones.

“Culpability,” moreover, is largely a function of public perception. An additional line of

arguments for a diminution of climate change reparations relates to the fact that no state is

completely “innocent.”158 Some states produce more GHG that others, but this has much more

to do with differences of development level than to a systematic engagement to the protection

of the global environment. It is overwhelmingly considered as a desirable public policy

objective for a state to develop its industrial sector, which almost inevitably results in GHG

emissions. Some efforts have however been made and some differences exist among developed

states, but, for now at least, efforts appear much more clearly in the trends (a diminution or a

limitation of the increase of GHG emissions in states making costly efforts to mitigate climate

change) than in absolute levels of emissions. This suggests that, if climate change reparations

is mostly designed to provide a political or economic signal for climate change mitigation (and

is yet to be politically acceptable), it is more important to attach consequences to the evolution

of GHG emissions than to the absolute levels of emissions in each state.

D. Limits of Collective Responsibility

Instances of large reparations also raise questions relating to the limits of the liability of a state

– that is, fundamentally, of a people – for the deeds of a government, past or incumbent. The

legal personality of the state is a legal fiction: the actions and omissions attributed to “the state”

156 Charles Keeling detected a rise in the atmospheric concentration of carbon dioxide in 1960, thus confirming

the possibility of earlier theories (some from the 19th Century) of an anthropogenic increase of the greenhouse

effect that would alter climatic conditions. In 1979 a US National Academy of Sciences report considers

anthropogenic climate change as highly credible. See generally Spencer Weart, The Discovery of Global

Warming, 2nd ed. (Cambridge, MA: Harvard University Press, 2008). 157 See UNFCCC, 3rd recital, noting that

“human activities have been substantially increasing the atmospheric concentrations of greenhouse gases, that

these increases enhance the natural greenhouse effect, and that this will result on average in an additional

warming of the Earth's surface and atmosphere and may adversely affect natural ecosystems and humankind.” 158 By analogy, Pierre-Marie Dupuy once suggested that the limitation of international responsibility for

catastrophic damages arising out of hazardous activities was related to a “a diffuse feeling of shameful solidarity

between states in front of the degradation of a human environment to which they all contribute” [translated by the

author]. Pierre-Marie Dupuy, “L’État et la reparation des dommages catastrophiques” in Francesco Francioni and

Tullio Scovazzi, eds., International Responsibility for Environmental Harm (London: Graham and Trotman,

1991) 125, at 142.

22

always result from the decisions of a small group of individuals assumed to act on behalf of a

people, and to whom it belongs to ensure that “the state” respects “its” obligations under

international law.159 In order to avoid abusive claims that could nullify the very foundation of

international law, the legal fiction of the state needs to result in a very strong presumption that

the conduct of a government acts on behalf of its state and that the acts of the government

engage the responsibility of the state. In this sense, it is understood that the conduct of a state

organ or agent can be attributed to a state notwithstanding the possibility of an excess of

authority under domestic laws160 or an international criminal responsibility of the individual

under international law,161 provided only that this organ or agent acted in its official quality.

Nevertheless, it is sometimes necessary to look beyond the legal fiction of the personality

of the State, in particular when reparation would otherwise be of grossly excessive

consequences onto individuals. While collective responsibility is an acceptable form of

“rough” justice when the stakes are small, it becomes unfair when it is extended to system-

wide violations, whether the latter are accidental, inadvertent, or even when it results from the

wilful action of a State’s government. The limitations of war reparations since the Versailles

Treaty, in particular, reflects a sense that it is not desirable to push the legal fiction of the

personality of the state so far as to impose the payment of reparations on the population of

devastated states (as a people often suffers when its government wrongfully engages in a war)

or to condemn this state to protracted payments of reparations that will affect yet unborn

generations.162 Beside moral aspects, the experience of the Versailles treaty shows that such a

rigid application of the principle of state responsibility can be politically toxic, with adverse

impacts on domestic public order as well as on international peace and security.

These reflections are perhaps best theorized in relation to a constitutive limitation of the

mandate of any government, under the social contract, to represent its people and to commit it

to particular obligations toward other peoples.163 Through the recognition of the international

criminal responsibility of individuals,164 the non-recognition of the concept of international

crimes of States,165 and the research of targeted or “smart” economic sanctions that impact a

159 See in particular Philip Allott, “State Responsibility and the Unmaking of International Law” (1988) 29

Harvard International Law Journal 1, at 14, arguing that “[t]he wrongful act of a State is the wrongful act of one

set of human beings in relation to another set of human beings.” See also the judgment of the International Military

Tribunal, in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14

November 1945-1 October 1946, vol. 1 (1947) at 223, noting that “[c]rimes against humanity are committed by

men, not by abstract entities.” 160 See Draft Articles on State Responsibility, supra note 12, art. 7. 161 See in particular the Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90 (entered

into force 1 July 2002), art. 25(4); Application of the Convention on the Prevention and Punishment of the Crime

of Genocide, supra note 130, at 43, para. 173. See also A. Cassese, “When May Senior State Officials Be Tried

for International Crimes? Some Comments on the Congo v Belgium Case” (2002) 13 European Journal of

International Law 853, at 864; A. Nollkaemper, “Concurrence between Individual Responsibility and State

Responsibility in International Law” (2003) 52 International and Comparative Law Quarterly 615. 162 See supra section III.B.2. 163 By contrast to the excess of authority of a State organ or State agent (which does not prevent the attribution of

a conduct to the State), the circumstances discussed here relate to an excess of power by a government as a whole.

The case law and doctrine developed in relation to the former do not automatically apply to the latter. 164 See in particular Draft Articles on State Responsibility, supra note 12, art. 58; and generally Rome Statute,

supra note 161 165 See discussion in James Crawford’s first report on state responsibility, in (1998) Yearbook of the International

Law Commission, vol. I.1, at 9-24, paras. 43-95. See also XXII Trial of the Major War Criminals before the

International Military Tribunal, Nuremberg at 466: “Crimes against international law are committed by men, not

by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international

law be enforced.”

23

government without affecting its population,166 State practice and the doctrine have

increasingly turned to acknowledge the possibility for international institutions to look beyond

the fiction of State responsibility when ascribing responsibilities for breaches of international

obligations. International law has recognized that the social contract through which

governments arise do not transfer absolute powers upon the latter; limitations of governmental

powers include respect for human dignity167 as well as environmental sustainability.168

Accordingly, a government cannot be deemed to have received an unlimited mandate to

commit the worst crimes or to damage the environment of present and future generations, while

sending the bill to its people – including to yet unborn generations – without providing them

with any equivalent benefits.

A diminution of climate change reparations could be justified on such grounds, especially

in relation to past emissions. The current and future generations of developed states’ citizens

assume no control for the failure of the past governments of their state to regulate GHG

emissions.169 Current and future generations may benefit from the development achieved by

their ancestors, but this benefit often extends beyond national borders in complex ways which

are difficult to assess. Likewise, future generations of citizens in industrial states should not be

required to pay full reparation on the ground of current emissions, unless perhaps they can be

shown to receive a distinct benefit from present emissions in their state. By contrast, collective

responsibility applies more readily in relation to present emissions and present generations. It

remains however that a great proportion of current GHG emissions are path-dependent: they

are considerably influenced by decisions made years or decades before, for instance regarding

transport or energy infrastructures.170 At least, unlike past emissions, current emissions can

credibly be assumed to benefit current generations at least at the collective level (e.g. through

domestic production), and the imposition of a correlative collective costs could therefore be

justified.

A symmetrical issue appears however at the stage of compensating harms that, for the most,

will be suffered by yet unborn generations.171 This raises questions relating to the limitation of

the legal personality of the state, specifically its ability to represent unborn generations of

nationals over decades, centuries and millennia. Related intractable issues were raised by

economists about a possible discount rate to apply in order to assess the present value of future

injuries.172 Arguably only part of the injury can be compensated to the government of affected

166 See e.g. D.W. Drezner, “Sanctions Sometimes Smart: Targeted Sanctions in Theory and Practice” (2011) 13

International Studies Review 96. 167 See generally Universal Declaration of Human Rights, GA Res. 217(III); International Covenant on Economic,

Social and Cultural Rights, supra note 73; International Covenant on Civil and Political Rights, 16 December

1966, 999 U.N.T.S.171 (entered into force 23 March 1976). 168 See e.g. Rio Declaration, supra note 10; Stockholm Declaration, supra note 10; UNFCCC, supra note 10. 169 This is certainly the basis for Posner and Weisbach’s assertion that collective responsibility for climate change

can only rely on “collectivist habits of thinking that do not survive scrutiny.” See Posner and Weisbach, supra

note 63, at 116. 170 See for instance Marc Fleurbaey et al., “Sustainable Development and Equity” in Edenhofer et al., eds., Climate

Change 2014: Mitigation of Climate Change, Contribution of Working Group III to the Fifth Assessment Report

of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2015) 283 at 312-

313. 171 Even if all anthropogenic GHG emissions ceased today (extremely unlikely because of paths accepted by our

generations that almost necessarily engage next generations to keep on with unsustainable practices), the climate

would continue to change for many centuries until a new global equilibrium could be reached. Continuing sea-

level rise in the coming centuries will, for instance, almost inevitably flood most of the cultural heritage of

mankind. See for instance Deliang Bruaer et al., “Introduction,” in IPCC, supra note 1, 119, at 128-129. 172 See Nordhaus, supra note 127.

24

states, based on a role of promoting at least the possibility of the existence of future generations

and, perhaps, what can reasonably be assumed to be the interests of these future generations.

An argument could consistently be made that reparations should not be used exclusively for

the benefit of current generations, but also with great concern for sustainable development

policies, such as environmental protection, assumed to be in the interest of future generations.

Although certain limitations of collective responsibility should be admitted for past, system-

wide wrongful conducts, all forms of collective responsibility do not fade away. The experience

of reparations for wars and other mass atrocities suggests that current generations retain some

responsibility for what was done in their name,173 as the strong presumption of the

government’s legitimacy cannot disappear without leaving any traces, and, in some cases,

because of some possible benefits drawn by the people as a result of the conduct.174 However,

remedial obligations in such circumstances are of a different nature than in classical cases of

the responsibility of a people for the acts and omissions of the government acting in the pursuit

of its interests. Rather than an obligation to make full reparation, the responsibility of a people

for the illegitimate conduct of its government needs to be tailored through specific negotiations,

taking into account the urgency of guarantees of cessation and non-repetition, the requirement

that the people of the responsible state draws no unjust benefit from the wrongful act, as well

as, more pragmatically, the need to restore constructive and friendly relations between peoples.

In this regard, reparations may take multiple forms, including not only material compensation,

but also – and overall – symbolic measures such as an apologetic policy of acknowledgment,

memory and commemoration.175

IV. IMPLICATIONS FOR CLIMATE CHANGE GOVERNANCE AND GENERAL

INTERNATIONAL LAW

The above considerations of complementary justifications for a diminution of climate change

reparations have implications not only for climate change governance (A), but also for our

conception of remedial obligations in general international law (B).

A. Implications for Climate Change Governance

As argued above, there are good legal arguments for a diminution of climate change

reparations. Firstly, climate change reparations should be assessed on the basis of a balancing

of the interests of the states affected by climate change, of the responsible states, and of the

good administration of justice. Secondly, given the complexities in assessing and valuing the

injury caused by excessive GHG emissions, climate change reparations could only be

established ex aequo et bono through some kind of lump-sum agreement, rather than on the

basis of a detailed assessment of the injury. Thirdly, an argument could be made for a

diminution of reparations due in relation to historical emissions, on the ground of the limited

“culpability” of polluting states at a time when there was only limited evidence of the adverse

173 See Statement of Chancellor Konrad Adenauer to the Bundestag on 27 September 1951 concerning the attitude

of the German Federal Republic toward the Jews, reproduced in C.C. Schweitzer, ed., Politics and Government

in Germany, 1944-1994: Basic Documents (Providence: Berghahn, 1995) at 123: “The unmentionable crimes

committed in the name of the German people demand a moral and material restitution” [emphasis added].

Adenauer thus insisted that these crimes were committed despite the opposition majority of the Germany people. 174 This would apply for instance to confiscation of the Amerindian or Palestinian lands, from which peoples draw

a benefit even in the absence of any personal responsibility. 175 See generally Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New

York: Norton, 2000). A parallel can be drawn with measures promoting education to climate change. See infra

note 183.

25

consequences of excessive GHG emissions. Fourthly, the fiction that the state is responsible

for the deeds of its government should not stretch to suggest excessive consequences on

individuals, in particular through requiring that a people pays full reparation for historical

wrongs resulting in mass injuries through instalments over a long period of time.

For what concerns historical emissions, this suggests significant diminution of climate

change reparations, especially if no distinct present benefit can be identified for the responsible

state or its population.176 But these considerations also plead for a diminution of climate change

reparations on the ground of the continuing failure of states to prevent excessive GHG

emissions. The level of climate change reparations should not be asserted solely on the ground

of the injury, but also in relation to the need for sanction and by taking the situation of the

responsible states duly into account. The indirect nature of the harm caused through excessive

GHG emissions and the widespread failure of states to prevent such emissions suggest that full

reparation would be disproportionate to the “culpability” attached to states’ wrongful conduct.

Climate change reparations should therefore be significantly lower than the valuation of the

harm that it causes. Nevertheless, climate change reparations should not to be reduced to a

trivial payment of “environmental indulgences” through an institutional practice of “selling

rights to destroy nature.”177 Rather, climate change reparations should constitute a sufficient

incentive for urgent climate change mitigation policies. It is thus necessary, at the very least

and in very abstract terms, that the cost immediately imposed to a state for its failure to prevent

marginal GHG emissions exceeds the interest that it attaches to this marginal GHG emissions,

so that each state is incentivized to reduce its GHG emissions.178 This does not suggest a full

application of the polluter-pays principle, but only its application at the margins in order to

foster any possible reductions that a state can realistically realize within any given period of

time.

Moreover, climate change reparations need to be politically negotiated. Adjudication is

highly unlikely, and, even if it occurred (perhaps through an advisory opinion of the

International Court of Justice) and led to a finding on reparations, compliance would be

contingent to the good-willingness of responsible states. The negotiation of climate change

reparations need to take place in highly unfavourable geopolitical settings, where the

responsible states tend also to be the strongest diplomatic powers, while the states most affected

are among the weakest nations. These geopolitical settings do not mean that climate change

reparations are doomed: to the contrary, the experience of spontaneous reparations schemes for

mass atrocities179 and the theories of “policy entrepreneurship”180 or “norm

entrepreneurship”181 all come to suggest that it is possible for relatively weak but astute and

176 Limitations of reparations for historical emissions could also partly be justified in relation to the

characterization of states’ obligations under the no-harm principle. If the no-harm principle only gives raise to a

due diligence obligation, state responsibility should not arise in relation to excessive GHG emissions which

predate the emergence of a scientific consensus on the anthropogenic cause of climate change. See discussion in

Mayer, supra note 8, para. 25. 177 Robert E. Goodin, “Selling Environmental Indulgences” (1994) 47 Kyklos 573 at 575. 178 This might appear as an extraordinarily unambitious objective, except that it is already well-beyond the current

agreements or negotiations. 179 See for instance Luxembourg Agreement, supra note 86; and, more generally, Barkan, supra note 175. 180 Caner Bakir, “Policy Entrepreneurship and Institutional Change: Multilevel Governance of Central Banking

Reform” (2009) 22 Governance 571; Michael Mintrom and Phillipa Norman, “Policy Entrepreneurship and Policy

Change” (2009) 37:4 Policy Studies Journal 649. 181 Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change” (1998) 52

International Organization 887; Ian Johnstone, “The Secretary-General as Norm Entrepreneur” in Simon

Chesterman, ed., Secretary or General: The UN Secretary-General in World Politics (Cambridge: Cambridge

26

well-organized advocacy coalitions to successfully claim for just and strong causes. If climate

change reparations are to contribute to foster efforts to avoid cataclysmic climatic change,

however, timing is clearly of the essence. The current workstream on loss and damage could

initiate such considerations within the climate regime, although any idea of reparation has

continuously faced the fierce opposition of industrial states.

In order to facilitate the prompt negotiation of climate change reparations, one need to

identify possible areas of trade-offs and conceivable second-best ideals. Climate change

reparations have a restitutive function consisting in repairing a harm caused through a wrongful

act (i.e. the impacts of anthropogenic climate change, resulting from excessive GHG emissions)

and an instrumental function of promoting the cessation of the continuing wrong (the failure

of numerous states to prevent excessive GHG emissions). As argued above, the instrumental

function is by far the most urgent: in a pragmatic perspective, it is more crucial to prevent

further harm than to advocate for compensation for the harm already caused.182 The most urgent

remedy to a creeping crisis such as climate change should ensure or incentivize the prompt

cessation of the harmful conduct, namely through climate change mitigation. A second-best

climate change reparations regime should accordingly seek to provide an adequate economic

and political signal for climate change mitigation policies, while avoiding as far as possible to

impose additional costs onto the states most affected by climate change. It should only extend

to providing material reparations as far as necessary in order to constitute an incentive for

climate change mitigation.

Beyond material reparations, however, significant measures of satisfaction should constitute

an integral part of any climate change reparations regime in order to reinforce a political signal

for climate change mitigation. Symbolic measures such as a clear acknowledgment of

responsibility, an apologetic attitude of relevant states officials and a policy of memory –

including through education to climate change,183 efforts to raise public awareness, or even, for

instance, the construction of museums – could play a great role in triggering a necessary

questioning of the unsustainable development model that led virtually every state to fail to take

adequate measures to protect the global environment. Material reparation and symbolic

measures would be mutually reinforcing, as symbolic measures would be perceived as

insincere if they were not accompanied by some measure of material reparations, while

material reparations alone might not provide a sufficiently clear political signal without some

symbolic expression.

B. Implications for General International Law

The previous reflections should also question the way reparations are thought of in general

international law. More specifically, it suggests that there are exceptions to the general norm,

identified by the International Law Commission, according to which “[t]he responsible State

is under an obligation to make full reparation for the injury caused by the internationally

wrongful act.”184 These exceptions are not by nature confined to a lex specialis applicable to

distinct fields: they are of a general nature, applying to analogous situations across diverse

University Press, 2007) 123; Lesley Wexler, “The International Deployment of Shame, Second-Best Responses,

and Norm Entrepreneurship: The Campaign to Ban Landmines and the Landmine Ban Treaty” (2003) 20 Arizona

Journal of International and Comparative Law 561. 182 See above section II.C. 183 See e.g. UNFCCC, supra note 10, art. 6(a)(i); Kyoto Protocol, supra note 10, art. 10(e); and decision 19/CP.20,

“The Lima Ministerial Declaration on Education and Awarness-raising” (2014). 184 Draft Articles on State Responsibility, supra note 12, art. 31(1).

27

fields of international law. These exceptions include the “legal principle of general

application,” as identified by the International Law Commission itself in its first reading of the

Draft Articles on State Responsibility, according to which measures of reparation should not

“result in depriving the population of a State of its own means of subsistence.”185 But beyond

the capacity of the responsible state to pay, a diminution of reparation could also be justified

on grounds such as the indirect nature of the injury, the significant disproportion between the

injury and the wrongfulness of the act, or the limitation of collective responsibility as a form

of “rough” justice in cases of large injuries.

In addition, the example of climate change shows that technological advance as well as our

improving understanding of complex causal relations make it increasingly likely that mere

inadvertence or possibly wilful commission of mass atrocities are identified as the cause of

catastrophic loss and damage, which challenge the assertion of a one-size-fits-all assertion

obligation to make full reparation. It is important that international law and its doctrine be

prepared to deal with such cases. International jurisdictions should be recognized a certain

leeway for an equitable assertion of remedial obligations, taking account not only of the extent

of the injury, but also of the resources and the “culpability” of the responsible state, and of the

opportunity of imposing costly reparations onto the population of that state, given its particular

political circumstances. Moreover, as international law also plays a role as a source of

legitimacy in international relations, the affirmation of an unconditional obligation to make full

reparations could encourage claims that are morally excessive or politically unrealistic, and in

any case unlikely to be met. In fine, these claims are most likely to severe international tensions

between nations and hinder international negotiations, thus defeating the main purposes of

international law.186

In a somewhat philosophical sense, one may actually doubt whether any reparation can be

full, at least when the injury is not limited to purely material, fungible goods. Loss of lives,

environmental damages, or even of unique or irreplaceable properties, can simply not be fully

made up for.187 In this perspective, reparation is rarely, if ever, able to “wipe out all the

consequences of the illegal act”188 or to make the injured party “whole”;189 rather, its objective

is essentially to minimize the damage caused190 and to deter further breaches of international

law. As Dinah Shelton once argued, notions such as full reparation “do not facilitate decision

making by tribunals or claims practice of parties because they are too general to provide

practical guidance.”191 The nature of remedial obligations relates not only to the ambit of

reparation, but also to its form. The assertions of remedial obligations should not be limited to

an automatic assessment of the possibility of restitution, compensation, or else measures of

185 First reading of the Draft Articles on State Responsibility, supra note 72, commentary under art. 48, at para.

8(a). 186 See in particular UN Charter, supra note 131, art. 1. 187 See e.g. B.E. Allen, “The Use of Non-pecuniary Remedies in WTO Dispute Settlement: Lessons from Arbitral

Practitioners” in M.E. Schneider and J. Knoll, eds., Performance as a Remedy: Non-Monetary Relief in

International Arbitration (Huntington: Swiss Arbitration Association and Juris, 2011) 281, at 299; Summary

Records of the 2399th meeting of the International Law Commission, UN Doc. A/CN.4/SR.2399 (1995), at para.

24. 188 Factory at Chorzów, P.C.I.J. Ser. A No. 17, at 47. 189 Opinion in the Lusitania Cases, decision of 1 November 1923, VII Reports of International Arbitral Awards

32, 39: “The remedy should be commensurate with the loss, so that the injured party may be made whole.” 190 See S. Sharpe, “The Idea of Reparation” in G. Johnstone and D.W. van Nees, eds., Handbook of Restorative

Justice (Cullompton: Willan, 2007) at 26. 191 D. Shelton, “Righting Wrongs: Reparations in the Articles on State Responsibility” (2002) 96 American

Journal of International Law 833, at 845.

28

satisfaction, or to the determination of the quantum of reparations based on the valuation of the

injury: it requires a more flexible decision based on a careful and detailed appraisal of the case.

V. CONCLUSION

Responsibility and reparation in international law fulfil two concomitant functions: addressing

an injury and sanctioning a wrongful act.192 The principles recognized in positive international

law, including the principle that a responsible state is obligated to make full reparation, were

identified by international jurisdiction, often in cases regarding a relatively minor injury that

could have significant consequences, in particular in the symbolic sphere, in the relation

between states. In turn, efforts at codifying the law of state responsibility, in particular in the

work of the International Law Commission, often took the limited practice of international

jurisdiction as the basis on which to develop rules of general applicability.

Thus, relatively little importance was given to the need for different rules to apply to atypical

cases, such as those involving large-scale damage,193 especially when they resulted from mere

negligence as opposed to wilful acts, or when the responsible state was unable or otherwise

unlikely to make full reparation. International jurisdictions were not always insensitive to the

dangers of indicating measures of reparations that would probably not be complied with, and

which could fuel geopolitical tensions, but they often preferred to disguise such considerations

on other grounds.194 As technological advance make claims for large reparations increasingly

likely, doctrinal theories need to be developed regarding the limitation of the obligation to

make full reparation.

Discussions on the nature of climate change reparations are prone to contribute to such

doctrinal developments. Full reparations, in the context of climate change, is not only

politically unrealistic and possibly toxic to friendly relations among nations. The indeterminacy

of applicable remedial obligations and the spectre of demands for full or otherwise expansive

reparations schemes have literally blocked any explicit recognition of responsibility by

industrial states. Because the risks of admitting responsibility were too high, Western leaders

have often turned to an attitude of denial – denying either any scientific evidence of

anthropogenic climate change, or (hardly more subtly) any form of “fanatic” finger-pointing195

and any ground for specific obligations of industrial states in relation to climate change.

As the concept of loss and damage is gaining momentum in international climate change

negotiations, and while negotiating powers are shifting in favour of emerging economies and

developing states generally, a window of opportunity might be opening for industrial states to

acknowledge their responsibilities and to accept some form of reparations, thus providing a

strong economic and political signal for climate change mitigation. In this process, however,

the relevance of the international legal principle of responsibility in the context of climate

change can only be advanced on the basis of a nuanced understanding of the applicable

remedial obligations, admitting valid grounds for a reasonable diminution of reparations.

192 See supra note 148. 193 See however Tomuschat, supra note 83, at 293. Tomuschat noted that, in the determination of war reparations,

“account was always taken of the actual capacity to pay.” 194 On the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide, see

supra note 130. 195 UN Senate, 105th Cong., 143 Cong. Rec. S8117 (25 July 1997). Senator Byrd also proclaimed: “the time for

pointing fingers is over.” The present article is an argument about how to bring the time for pointing fingers to an

end, through a reasonable offer of reparations.

29

Concerning a continuing wrongful act with the most alarming consequences for civilization

and mankind, climate change reparations should first and foremost be designed to provide a

strong incentive in favour of a prompt reduction of GHG emissions.